Wednesday, 7 March 2012

This has nothing to do with travel. You've been warned. (Although it does have to do with privacy, and perhaps the 4th Amendment.)

I've filed a formal protest today with the California Public Utilities Commission against something called an Advice Letter submitted to the CPUC by PG&E, the local gas and electric company.

Advice Letter 3278-G/4006-E is supposed to implement a CPUC order for PG&E to set up an "opt-out" program for PG&E customers who don't want to have a so-called "SmartMeter" installed at their homes.

Unfortunately, PG&E has gone far beyond the mandate of the CPUC's decision, and has proposed to create a legal presumption that if no one is home when PG&E makes a field visit to install a SmartMeter (my gas and electric meters are actually inside the house, as is typical in San Francisco), or whatever PG&E thinks is "reasonable" access isn't granted, the PG&E customer will be "deemed to have elected" to pay additional one-time and monthly fees for gas and electric service. The specific language in the PG&E Advice Letter which I have protested is as follows:

If PG&E makes a field visit to a customer's residence for purposes of installing a SmartMeterTM and the customer does not provide reasonable access to PG&E to install a SmartMeterTM after being provided notice of eligibility for service under this Opt-Out Program and not electing to opt-out, the customer shall be deemed to have elected service under this Opt-Out Program.

Along the way, there have been so many spurious (IMHO) objections to the "SmartMeter" scheme that what I see as real objections have been largely overlooked: A "SmartMeter" is actually a general-purpose digital radio transceiver including an unknown array of sensors, which would form a node in a PG&E wireless mesh data network. In other words, a "bug" that I would allow the utility to install inside my house, for its profit.

Anyway, since I'm not the owner of the house, I have no authority to authorize any such thing.

I'm especially concerned that if PG&E is allowed to use existing on-premises gas and electric usage meters as the basis for a claim of entitlement to install digital mesh network antennae and transceivers for third-party data at current meter locations, AT&T could, on the same basis, claim the "right" to replace the telephone junction box inside my home with a cellphone antenna and base station, without compensation, indemnification, or consent....

If PG&E wants to build out a digital wireless mesh network infrastructure for for-profit use by third parties, it can do so in the same way that every competing digital wireless data network operator has done: by purchasing or leasing property for this purpose, and/or by negotiating and obtaining permission to place equipment on non-PG&E property.

If property owners do not choose to grant such permission, the proper procedure for attempting to obtain such rights to private property or its use is the power of eminent domain -- not a CPUC order, PG&E tariff, or Advice Letter.

In effect, PG&E is seeking through this Advice Letter to use its "foothold" on customer premises at the gas and electric meters to effect an uncompensated taking of valuable radio transceiver and antenna siting rights, which property owners would otherwise be entitled to reserve, to exercise for themselves, or to sell or rent to parties and on terms of their choosing.

Regardless of whether property owners would agree to this proposal, non-property-owner PG&E customers such as myself simply have no authority to grant such licenses or easements. And it would be unjust and unreasonable to impose surcharges, additional fees, or a higher tariff on us because of our not taking an action which we have no legal authority to take.

Related documents are in the relevant CPUC docket, along with the CPUC procedures for Advice Letters, protests, and hearings.

Frankly, I have no desire to play any leading role on this issue, or even to spend time on it at all. I've brought other misuse of customer contact information and disclosure of it to third parties by PG&E to the attention of the CPUC in the past, and I filed this protest because the deadline for objections was today, and nobody else had expressed any objections. I would be delighted to hear from other people or organizations with the resources to argue this protest for me, especially if the CPUC grants my request for an evidentiary hearing on rights of access to customer premises for SmartMeter installations.

Both PG&E and the CPUC have now admitted to me that they are aware that both of these documents were required to be served on me, but were not served. (I've pointed out to both PG&E and the CPUC -- who have both admitted to having held ex parte discussions with each other, to which I am not privy, about my protest -- the appearance of collusion created by their both having made the same "mistake" in dealing with the same protest.)

Neither a purported "reply" by PG&E, nor a purported "disposition" by the CPUC Energy Division, are valid without having been served on me at the time they were sent.

The duty of the CPUC is now to suspend or reject the PG&E Advice Letter for lack of a valid reply by PG&E or valid disposition by the CPUC Energy Division.

Lest anyone misunderstand, or should PG&E and/or the CPUC try to misrepresent my protest, I did not -- in this protest -- object to SmartMeters in general, CPUC decision D.12-02-014, or an "opt-out" program within the scope authorized by that decision. I protested specific aspects of the Advice Letter which exceeded the scope of that decision by making erroneous, or at least disputed, factual determinations with respect to customers' intentions and access to customer premises, and imposing fees and a higher tariff on customers who do not, in fact, "not wish to have a SmartMeter".

Suspending or rejecting Advice Letter 3278-G/4006-E would not prevent PG&E from seeking approval -- by Advice Letter or CPUC resolution -- for an "opt-out" program that does not contain these disputed provisions (which should now be the subject of a formal proceeding and evidentiary hearing).

It was PG&E's choice, not mine, to propose a program beyond the scope of the CPUC's decision, and protests such as mine to such an Advice Letter were entirely foreseeable. Any costs to PG&E from failing to anticipate such protests, or from failing to comply with CPUC notice requirements, are entirely self-inflicted. Any costs resulting from PG&E's noncompliance with CPUC procedural, due process, and public participation rules must be attributed entirely to PG&E stockholders, not "ratepayers" (gas and electric customers).

I'm talking to various people at PG&E (although the person who signed the Advice Letter, V.P. Brian Cherry, refuses to talk to or meet with me) and the CPUC, to find out how to proceed.

Meanwhile, I've come across this 2008 case (Koponen v. PG&E) and this 2011 case (a proper citation, contact info for the attorneys involved, or any updates on the status of this case would be welcomed) indicating that this isn't the first time that PG&E has tried to use easements or rights-of-way granted for, and limited to, gas and electric transmission purposes to sell access rights (that it didn't own, under the terms of those easements) for third-party telecommunications facilities.

As for PG&E obtaining rights to install "SmartMeters" (with their included wireless mesh data network transceivers) on municipal property, the City and County of San Francisco is already on record with the CPUC as opposing the SmartMeter program. Proposition J, which was approved by San Francisco voters in the October 2007 election, sets conditions for would-be users of City and County property for wireless data infrastructure that PG&E's SmartMeter program doesn't meet, including that any license for such use of municipal property be a time-limited contract rather than a "franchise". And PG&E didn't even submit a bid in response to San Francisco's request for proposals from would-be data network operators.

I'll post a further update when I know more about what will happen next.]

[Further update, 28 March 2012: I still haven't been served with anything by the CPUC, and even the CPUC Public Advisor's Office hasn't been able to figure out the status of PG&E's Advice letter or what, if any, action the CPUC thinks it has taken!

As a result, my only way to protect my rights has been to file a formal request for the CPUC itself ("the Commission") to review what has happened and clarify that the Advice Letter has been suspended and that the issues I have raised will be referred to a formal CPUC fact-finding proceeding.]

[Further update: Nothing in the mail or on the CPUC or PG&E Web sites yet, but this e-mail message from a staff attorney at the CPUC: "[T]he letter that the CPUC will be sending you is going through management review.... The disposition on the above-referenced Advice Letter has been withdrawn and your request for the review of that disposition is being held in abeyance. The letter contains further instructions on the ensuing process."]

You have definitely done your homework and know how to proceed. My case is a bit different in that I own my own home and PG&E has sent me a certified letter stating that I have until May 1st to tell them that I either 1) will keep my analog meter, pay the $75 setup fee, and be obligated to an extra $10 per month, or 2) do nothing and they will install the SmartMeter. Do I have any recourse to this bullying or am I up the proverbial creek? Thanks!

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